Opinion · United States District Court

SUMMARY JUDGMENT UNDER FEDERAL RULES (N.D.Cal. 1-1-2008)

99 F.R.D. 465

Type
Opinion
Court
United States District Court
Jurisdiction
Federal
Date
2008-01-01
Topic
general

SUMMARY JUDGMENT UNDER FEDERAL RULES (N.D.Cal. 1-1-2008) 99 F.R.D. 465 SUMMARY JUDGMENT UNDER THE FEDERAL RULES: DEFINING GENUINE ISSUES OFMATERIAL FACT.United States District Court, N.D. California. January 1, 2008 WILLIAM SCHWARZER, Senior District Judge[fn*] [fn*] United States District Judge for the Northern District of California. I am greatly indebted to Jeffery Ubersax, Michael Burns and Glenn MacGilvra for their help in preparing this article. I.

Citator

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SUMMARY JUDGMENT UNDER FEDERAL RULES (N.D.Cal. 1-1-2008)
99 F.R.D. 465
SUMMARY JUDGMENT UNDER THE FEDERAL RULES: DEFINING GENUINE ISSUES OF
MATERIAL FACT.
United States District Court, N.D. California.
January 1, 2008
WILLIAM SCHWARZER, Senior District Judgefn*
I.
INTRODUCTION
The summary judgment procedure under Rule 561is plagued by confusion and uncertainty. It suffers from misuse by those lawyers who insist on making a motion in the face of obvious fact issues; from neglect by others who, fearful of judicial hostility to the procedure, refrain from moving even where summary judgment would be appropriate; and from the failure of trial and appellate courts to define clearly what is a genuine issue of material fact.

Summary adjudication of claims or defenses is one of the means for implementing the fundamental policy of the Federal Rules stated in Rule 1: "to secure the just, speedy and inexpensive determination of every action." Rather than standing alone as a peculiar procedural shortcut, it is an integral part of the framework of the Rules, closely related to other provisions which are similarly intended to permit the early elimination of claims and defenses that the proponent cannot support. Summary judgment supplements dismissals under Rule 12, reinforces the good faith pleading requirement of Rule 11, complements issue definition procedures under Rules 26(f) and (c) and Rule 16, and is congruent with both Rule 50(a) governing directed verdicts and Rule 41(b) providing for dismissals.

Contrary to what decisions frequently imply, the purpose of Rule 56 is not limited to the disposition of questions of law. As the Advisory Committee stated at the time the rule was adopted in 1938:West Page 466
Summary judgment procedure is a method for promptly disposing of actions in which there is no genuine issue as to any material fact.2


That the rule is intended to pierce the pleadings and allow the sufficiency of the opponent's evidence to be put to the test is confirmed by the 1963 amendment which provided that, when a properly supported motion is made,
an adverse party may not rest upon the mere allegations or denials of his pleadings, but * * * must set forth specific facts showing that there is a genuine issue for trial. If he does not respond, summary judgment, if appropriate, shall be entered against him.


The Advisory Committee added the following explanation:
The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.3


The courts have, however, been uniquely ambivalent toward Rule 56; their attitudes range from enthusiastic support for the economy and efficiency of summary judgment to hostility based on the suspicion that judges, intent on controlling their dockets, may use summary judgment as a "catch penny contrivance to take unwary litigants into its toils and deprive them of a trial."4As a result, lawyers are uncertain about the treatment a motion will be given and about the kind of showing the court will consider sufficient to support or defeat it. Trial judges are equally uncertain about how a summary judgment will fare on appeal and whether hitherto undisclosed issues of fact will be permitted to surface there.

It is the premise of this Article that Rule 56 has frequently been misinterpreted and misapplied because the courts have failed to develop a principled analysis for summary judgment. Instead, the rule has become encumbered with an impressionistic and dogmatic overlay that obstructs sound analysis. Moreover, the reasoning in appellate decisions as to whether there is a triable issue is normally pursued sub silentio, the opinion being dominated by a discussion of the merits. As Justice Marshall said, writing for the Court inFirst National Bank v. CitiesService,5"the question whether summary judgment is appropriate in any case is one to be decided upon the particular facts of that case."6As a result, what emerges from the decisions is principally an ad hoc jurisprudence, preoccupied with the courts' views of the merits of the case.7Discussions of summary judgment generally consist of formalistic rhetoricWest Page 467and often reflect a hostility toward summary procedures, an inclination toward sparing application of the rule, and a commitment to resolve all doubts against the moving party.8

The chilling effect of this approach to summary judgment is reinforced by a perception that summary judgments suffer a disproportionately high rate of reversal. The reported decisions tend to present a distorted picture; cases in which the procedure is used properly and successfully are less likely to result in appeals and, if appealed, in reported opinions.9This has contributed to the view that summary judgment is disfavored and therefore risky.

This is a regrettable state of affairs, frustrating the intent of those who drafted Rule 56 and of the Supreme Court and Congress which adopted it to further the efficient and economical resolution of issues not requiring an evidentiary trial. It has particularly unfortunate consequences in this time of high litigation costs and heavily burdened court dockets. Public demand for greater efficiency and economy, which is served by early disposition of baseless claims and defenses, is insistent and well-founded and has led to widespread efforts to find alternative means of dispute resolution. Proper use of Rule 56 is one way in which the judicial system can respond to that demand consistent with justice.10

Judicial reservations about summary judgment are not without foundation. In part they have their origins in a profound attachment to the jury system which some see threatened by summary procedures.11They also flow from persistent doubt about the value and efficacy of supposed shortcuts which may themselves be costly and time-consuming when not well managed and, if unsuccessful, may add to the delay and cost ofWest Page 468litigation.12These concerns should not be dismissed; sometimes a shortcut turns out to be the longest distance between two points. They are best met, not by judicial hostility and niggardly application of Rule 56, but by a reasoned approach consistent with the language and purpose of the rule.

This Article attempts to develop such an approach as a substitute for the prevailing anecdotal jurisprudence. The analysis may be summarized as follows:

A. In the Trial Court:

1. Does the motion raise a pure issue of law? If it does, disposition by summary judgment is appropriate.

2. Does the motion raise a dispute over a historical fact or inference? If it does, but
a. The disputed issue is not material in the sense that its decision is not essential to a decision of the motion;
or
b. The evidence produced by the opponent of the motion would be insufficient to preclude a directed verdict or judgment n.o.v., disposition by summary judgment is appropriate.


3. Does the motion raise a dispute over an ultimate fact (mixed question of law or fact)? Here the analysis differs depending on whether the case would be tried to a jury or to the court.
a. If the case would be tried to a jury, and
i. No historical facts are in dispute,and
ii. The ultimate fact issue is of a kind that is appropriately decided by a court rather than the jury,
disposition by summary judgment is appropriate.
b. If the case would be tried to the court, and
i. No historical facts are in dispute,and
ii. The decision of the issue does not turn on an assessment of witness credibility or demeanor,
disposition by summary judgment is appropriate.

B. On Appeal:

1. If the appeal is from a summary judgment which
a. Decides a pure question of law,or
b. Decides the insufficiency of evidence to preclude a directed verdict or judgment n.o.v.,
the scope of review is de novo.


2. If the appeal is from a summary judgment which decides an ultimate fact (mixed question of fact and law) the scope of review is deWest Page 469novo unless the appellate court determines that the trial court decision involved an assessment of a substantial factual record or turned on the court's experience and expertise to an extent that review should be under the clearly erroneous standard.

This Article develops the analysis by exploring first what is a material issue of fact. Next it considers the criteria for determining whether a fact issue is genuinely disputed. And finally it addresses the scope of review on appeal.
II.
WHAT IS A MATERIAL FACT ISSUE
The premise of the summary judgment procedure is that there is no disputed issue requiring an evidentiary hearing for decision; trial may therefore be dispensed with. The first step in the analysis is to determine whether there is such an issue. That determination involves two questions:

(1) is there an issue of fact appropriate for trial and

(2) is that issue material?

In approaching the first question it is necessary to determine whether the disputed issue is one to be decided by the jury if trial would be to a jury. If the trial is to be to the court, the question is whether the issue implicates witness credibility or demeanor. If under this analysis a fact issue is found to exist, the second question must be answered by determining whether decision of that issue will determine the outcome.A.
What is a Fact Issue in Jury Cases


Summary judgment under Rule 56 turns on the absence of an issue of material fact, but the rule does not define what is a fact. This is not surprising; judges have struggled with that question for over three hundred years without reaching a definitive resolution.13As the Supreme Court stated inPullman-Standard v.Swint14
The Court has previously noted the vexing nature of the distinction between questions of fact and questions of law * * *. Nor do we yet know of any * * * rule or principle that will unerringly distinguish a factual finding from a legal conclusion.15


One finds little discussion and virtually no guidance on this question in the summary judgment cases. A judge is free therefore to approach it analytically and pragmatically.16Such an approach should be based on the effect of the judge's determination — to rule that the issue is one of fact leaves it for decision at trial, to rule the contrary is to remove it fromWest Page 470trial. Where the motion is made in a jury case, the ruling determines whether the issue is left to the jury or taken from it. Logic and common sense therefore commend a test for fact issues in jury cases based on whether the issue would at trial properly be submitted to the jury.

This is a two-pronged test: the first prong is whether the issue is of a type normally tried to a jury; the second prong is whether, in the particular case, there is sufficient evidence for the issue to go to the jury or, to put it differently, whether the facts adduced in opposition to the motion are sufficient to preclude a directed verdict or judgment n.o.v. at trial. I deal with the first prong in this part and with the second prong in part III.B.

The dictionaries define a fact as a thing done, an action performed, or an event or occurrence.17One can safely say, therefore, that a dispute over whether a thing was done or an event occurred is an issue of fact. Such facts, which may be called historical facts, are jury issues. While some historical facts are proved by direct evidence, others can be proved only circumstantially by inference from other evidence.18Notice, intent, motive and other states of mind are common examples of historical facts established by inference. A dispute over such an inference is an issue of fact even if the underlying evidence itself is not in dispute, and it too is a jury issue.

The major source of complexity under Rule 56 is the treatment of issues of ultimate fact which may also be called mixed questions of law and fact. An ultimate fact, to be distinguished from historical or circumstantial facts, is an outcome determinative fact, derived from historical facts by a process which "implies the application of standards of law."19It is a mixture of fact and law; fact because it is derived by inference or reasoning from the evidence, and law because the derivation is informed by legal principles and policies, producing a fact of independent legal significance.

Ultimate facts differ from pure legal conclusions, which follow necessarily from proof of certain historical facts. Whether an action is barred by a statute of limitations, or by res judicata, or by a statutory exemption or exclusion, or whether a party lacks standing or a court jurisdiction are conclusions which normally follow directly from proof of critical facts. A legal conclusion may of course turn on disputed historical facts; for example, application of a statute of limitations may depend on whether or when an event occurred. In such a case, the underlying evidence may present a triable issue of fact while the legal issue remains to be decided by the court on the facts found at trial.20West Page 471

It is apparent, therefore, that the issues in a lawsuit lie within a spectrum ranging from disputes over historical facts on one extreme to disputes over legal conclusions on the other. The difficult decisions on motions for summary judgment concern where to draw the line between fact and law issues in the midsection of the spectrum comprising ultimate facts, i.e. mixed questions of law and fact. It is with those questions with which this Article is primarily concerned.

Regardless of where that line is drawn, when there is a conflict in the underlying evidence material to the determination of the ultimate fact, there is of course a triable question for the jury. But when the evidence submitted by the proponent and opponent of the ultimate fact differs rather than conflicts, the dispute is only over the ultimate fact to be derived from the totality of the evidence. Whether that dispute is over an issue of fact or over an issue of law depends on the nature of the disputed ultimate fact to which I now turn.

Faced with such a dispute over an ultimate fact, the court must decide whether, for purposes of Rule 56, the issue is one of fact or law. To approach that decision on the assumption that by its nature every issue belongs to one side or the other of a clear fact/law dichotomy is to invite simplistic solutions elevating labels over principle and policy.21Similarly, to assume, as courts frequently do, that any dispute over inferred or derived facts necessarily precludes summary judgment is to close one's eyes to the substance of the question.22That question is not whether an ultimate fact is in dispute, but whether it is to be decided by the judge or by the jury. If it is not a jury issue, and the underlying historical facts are undisputed, the issue is appropriate for summary judgment.23

Thus the court should first consider whether the disputed issue, as a matter of precedent or policy, should be decided by the jury or by the court.24That approach should present no difficulty with respect to a large category of issues traditionally tried to juries. Whether a defendant failed to use due care in the operation of his vehicle, whether he was driving in the course of his employment, and whether the injuries suffered by plaintiff were proximately caused by the defendant's operationWest Page 472of the vehicle are issues of ultimate fact for the jury. Similarly, whether a person had reasonable cause, acted within a reasonable time or can be charged with notice are jury issues.25All are ultimate facts turning on examination and assessment of human behavior within the common experience of jurors. Concerning issues of this sort, "[i]t is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge."26Decisions of such issues, moreover, are generally ad hoc, with little resort to policy, with precedent playing a minor part, and with no compelling need for uniform or predictable outcomes. Of such mixed issues of fact and law, one can say that their law content is relatively low.

This does not mean that every such issue must be submitted to the jury, i.e. that summary judgment is precluded. That will turn on the second prong of the test — whether the motion or the opposition is sufficient to establish that the proponent of the issue could survive a motion for directed verdict or for judgment n.o.v., a question discussed later.27

A second category of ultimate fact issues consists of those which involve the application of predominantly legal standards to undisputed historical facts. The decision here turns not so much on factors within the common experience of jurors as on matters of law and policy and on technical questions underlying the particular legal scheme. It should not be made ad hoc; consistency, uniformity and predictability here are important to the administration of the underlying laws. Issues of this sort arise most frequently in the application of legislation or of public policies. Examples include whether a union breached its duty of fair representation,28whether a controlling person acted in good faith within the meaning of the securities laws,29whether location restrictions in a dealer agreement were an unreasonable restraint in violation of the antitrust laws,30whether a transaction was a sale or transfer of a secured interest,31whether a restrictive covenant imposed on an employee was reasonable,32whether receipt of federal funds converted a private institution into a government agency,33whether the plaintiff was a public figure34and whether a statement is of fact or opinion under the defamationWest Page 473laws,35whether a publication was not copyrightable because it was historical,36whether an invention was reduced to practice37and whether a carrier's operations made it a common carrier.38Of mixed questions such as these, it is fair to say that their law content predominates.

Ultimate fact issues of this sort are properly decided by the court and are therefore appropriate for summary judgment if the underlying historical facts are not disputed. That is true even though the process of decision requires the trial court to "weigh the evidence" on both sides of the argument in deciding what ultimate fact to derive. For example, a decision whether a plaintiff suing for wrongful discharge under the civil rights acts was a "policy-making employee" might well be treated as an ultimate fact properly decided on summary judgment although it requires the court to consider some evidence which, while undisputed, in part supports that characterization and in part does not.39As the District of Columbia Circuit has said of this type of case:
There was conflict concerning interpretation of the facts and the ultimate conclusion to be drawn from them * * *. But there was none as to the facts themselves. In other words, the evidentiary facts were not substantially in dispute. * * * Conflict concerning the ultimate and decisive conclusion to be drawn from undisputed facts does not prevent rendition of a summary judgment, when that conclusion is one to be drawn by the court. The court had before it all the facts which formal trial would have produced. Going through the motions of trial would have been futile.40


A third category consists of those issues of ultimate fact which may be appropriate for jury determination in some cases but not in others. One example of such a variable issue is the existence of a conspiracy under the antitrust laws. In certain conspiracy cases the lawfulness of joint conduct of defendants can turn on their purpose and intent, a question of fact usually disputed and well within the conventional sphere of the jury.41In other cases, the conspiracy issue may turn on whether, as a matter of law and policy, a particular relationship among parties, the historical facts of which are not disputed, should be treated as an unlawful conspiracy. For example, where the question is the lawfulness of an exchange of price-related information42or the maintenance ofWest Page 474standard industry-wide licensing agreements,43the issue, while one of ultimate fact, is quite clearly for the court.

Another example of such a variable issue is the reasonableness of a restraint of trade. Whether, for example, a restriction by a manufacturer on the sales locations of its dealers is reasonable depends on technical considerations, including the nature of the trade and the economics of the market, and should be adjudicated in a reasonably consistent manner.44And whether an undisputed arrangement requiring the purchase or sale of certain goods as a condition to purchasing or selling others should be treated as an illegal tying agreement,45or whether particular products or services should be included within a relevant market are all questions which may be appropriate for summary judgment in the absence of evidentiary disputes.46On the other hand, whether the need for perpetual maintenance of grave markers makes it reasonable for a group of cemeteries to adopt a uniform rule governing the alloy content of grave markers may turn on the physical facts about maintenance and may thus be within the competence of a jury to decide from the evidence in the case.47

The interpretation of a written instrument is likewise sometimes an issue of fact and sometimes an issue of law for Rule 56 purposes. While interpreting a writing which the court finds to be unambiguous is clearly a question of law,48an issue of fact may be raised by a dispute over the intention of the parties to an ambiguous writing. Where the evidence of intention is in conflict, there is an issue of fact.49But where the evidence differs rather than conflicts, one must consider the nature of the inferences urged by the parties to determine whether they should be drawn by the jury or the court. In the usual case of contract interpretation, the inference will be of an ultimate fact controlling the legal relationship of the parties (is the particular work covered by the agreement, does the condition excuse performance, etc.).50Having in mind that the interpretation of writings traditionally has been regarded as a question for theWest Page 475court, it makes little sense to take it from the court simply because extrinsic evidence bearing on the intention of the parties is admissible so long as there is no conflict in the evidence. Thus, cases of document interpretation should be distinguished from cases where the dispute is over the intent of the parties as such which, as previously discussed, is a fact issue.

The Supreme Court has recognized the appropriateness of deciding issues of ultimate fact on summary judgment, although it has not directly considered whether or not they are jury questions.51On the other hand, it has also reversed summary judgments on these kinds of issues, but where it has done so its decision can be explained as being based on a judgment that the record had not been sufficiently developed to allow the court to make a fully informed decision on particularly difficult and far reaching issues.52It is important to the integrity of Rule 56 that courts distinguish between a need for further development of the record and the presence of a triable issue precluding summary judgment. A trial judge identifying a critical issue of ultimate fact should give the parties an opportunity to develop the record adequately (through a trial if necessary).53Similarly, the appellate court, if it concludes that a critical issue of ultimate fact has not been sufficiently developed and considered, should remand for that purpose rather than deny summary judgment on the ground that there is a "triable issue of fact." That the record below may have been inadequately developed does not transform what would otherwise be an ultimate fact issue proper for summary judgment into a triable issue.54West Page 476

The notion expressed by some courts that summary judgment is inappropriate in complex cases involving important issues should be viewed with scepticism in light of this discussion. The key to the proper disposition of complex cases raising difficult issues (whether by trial or motion) is careful issue identification and clarification. The same careful issue identification and clarification is essential also to the proper disposition of summary judgment motions. The summary judgment process can be very helpful in identifying and clarifying issues (whether the motion is ultimately granted or not) and may therefore be particularly appropriate for complex litigation.55While the complexity or difficulty of the issues may also place a greater premium on full record development, the question whether fuller development is feasible or desirable is distinct from whether use of the summary judgment procedure is appropriate.

These considerations should help courts arrive at reasoned determinations in jury cases whether issues may be decided on motion as legal issues or require trial as fact issues. The analysis is different, however, when the court is the trier of fact.B.
What is a Fact Issue in Court Cases


Under the preceding analysis the jury's role is the linchpin in the determination whether a fact issue is present. When there is no right to a jury trial or the jury has been waived,56that analysis is irrelevant. The judge who rules on the motion is also the trier of fact.57The question then becomes: What does a trial add to the judge's ability to decide the issue submitted on motion?

Clearly, when a dispute over historical facts or inferences raises issues going to the weight or credibility of testimony, the party opposing the motion is entitled to confront and cross-examine witnesses at trial and the judge must consider their credibility and demeanor in finding facts.58In that situation a trial is required.West Page 477

But when all material facts are before the judge on motion and the parties, while urging conflicting ultimate facts or conclusions, have no evidentiary disputes, it is not so clear that a trial serves as useful purpose. The party opposing the motion can effectively attack the moving party's showing not only by its own affidavits but by depositions of the movant's affiants and other discovery, all of which can be submitted as a part of the opposition. While discovery is not a substitute for cross-examination where credibility or demeanor are material, it is adequate to enable an opponent to meet the merits of the motion.59

Thus where the dispute is solely over ultimate facts, a trial normally adds nothing in a case where the judge is the trier of fact. That is particularly true in a case where the motion is based on the legal insufficiency of the factual showing of the party having the burden of proof, and does not rest on facts offered by the moving party.60Where, for example, the motion accepts as true plaintiff's evidence of causation but argues that, being merely speculative, it is insufficient as a matter of law, the issue is ripe for summary judgment. To hold otherwise would be to say that a plaintiff has an absolute right to present live witnesses (and compel his opponent to do the same), even though that testimony is not material to the outcome.61

The Supreme Court has on two occasions intimated the appropriateness of treating summary procedures differently in non-jury cases. InUnited States v. Gypsum,62where the government had sued under the Sherman Act to enjoin defendants from enforcing the price stabilization provisions of industry-wide licensing agreements, the district court granted summary judgment on the ground that the provisions were illegal per se price fixing agreements. The Supreme Court affirmed, holding that even if the evidence offered by defendants in justification of the provisions were accepted as true, a finding for defendants by the trial court would have to be reversed as clearly erroneous. Thus, the Court treated the issue whether an unlawful conspiracy existed as being ripe for decision on summary judgment in a non-jury case and reviewed the decision as though a final judgment had been rendered after trial on the merits. InWeinberger v. Hynson, Westcott Dunning,63the Court, in upholding the validity of the Food and Drug Administration's summary procedure for the rejection of new drug applications, said
If this were a case involving trial by jury as provided in the Seventh Amendment, there would be sharper limitations on the use of summary judgment as our decisions reveal.64
West Page 478

The Court's decision inUnited States v. Diebold Inc.,65clouds this picture. That was a civil antitrust action brought by the government under Section 7 of the Clayton Act challenging Diebold's acquisition of a manufacturer of safes. The trial court granted summary judgment for defendant on the ground that the safe company at the time of acquisition was a "failing company", a complete defense to the Section 7 charge, and that defendant was the only bona fide prospective purchaser. The Supreme Court, in a brief per curiam opinion, reversed on the ground that there was a "genuine issue as to ultimate facts."

It is doubtful that this unelaborated statement can be taken as authority that every dispute over an ultimate fact is a factual question that necessarily precludes summary judgment. The opinion suggests that the factual controversy in the trial court was not over whether defendant was a "failing company," a true ultimate fact, but over the finding of historical fact that no other offers to purchase the company had been made. Thus the Court stated that this finding "represents at least in part the resolution of a head-on factual controversy."66Nevertheless, the Court went on to say that "both findings represent a choice of inferences to be drawn from subsidiary facts. * * * On summary judgment the inferences to be drawn * * * must be viewed in the light most favorable to the party opposing the motion. A study of the record * * * leads us to believe that inferences contrary to those drawn by the trial court might be permissible."67

This statement was much broader than necessary for the decision and for that reason cannot be accepted uncritically. It raises two questions (questions which should be asked on every appeal from a summary judgment). First, what would remand accomplish? Neither the opinion of the district court nor that of the Supreme Court suggests that the government wanted to offer additional evidence or take additional discovery. Had the government wished to go behind any of Diebold's affidavits or other proof, it could under Rule 56(f) have had discovery before submitting the motion.68Thus, for all that appeared, the same record would again have been before the district court on remand. And since only equitable relief was sought, the judge who granted the summary judgment would be the trier of fact.

Second, what would be the issue for trial? There apparentlywasa factual controversy over whether Diebold was the only prospective purchaser. But to the extent the conflict was over the inference whether the company was failing, the opinions disclose no conflict in the evidence warranting cross-examination. Even had the parties offered conflicting expert testimony, cross-examination before the court would not necessarily have been appropriate. Differences among experts do not inevitably preclude summary judgment; the question is whether they are the kind of differences that require a trial for their resolution. If they turn onWest Page 479evidentiary disputes and implicate credibility or demeanor, a trial is called for. But if they concern judgments, opinions or conclusions, they can normally be resolved by affidavits and discovery.69

The trial judge could, of course, conclude that in the circumstances of the particular case he or she would be more comfortable making the decision after a full trial at which the evidence might be better evaluated. This is a determination which the judge might make in the exercise of discretion based on an assessment of the record and of other relevant circumstances affecting the case. It differs, however, from whether the judge is required, as a matter of law, to hold a trial on the issue, thereby making the granting of a summary judgment reversible error. That question turns on how, for purposes of the rule, the line is drawn between fact and law in bench trials. The foregoing analysis suggests that the line should be drawn where testimonial credibility or demeanor become significant to the outcome. That is not a novel criterion since it is similar to that underlying Rule 52 governing the scope of review. In theory at least, appellate courts frequently differentiate in the scope of review of trial court decisions depending on whether deference is due the trial judge's finding because it rests on the judge's superior capability to evaluate testimonial credibility and demeanor. The same criterion can be helpful to courts in determining whether a trial is required.

The point here is not that the provisions of Rule 56 should be ignored in nonjury cases.70Rather it is that in the absence of a genuine need to assess testimonial credibility or demeanor, the decision of issues which would otherwise go to the jury may be made on motion for summary judgment when trial is to the court.71In such cases it is not enough to classify an issue as one of "law" or "fact" or "ultimate fact" as those terms are conventionally understood; the court must determine whetherWest Page 480a trial of the issue would serve any purpose. If it would not, then the issue is one of lawfor purposes of Rule 56, even if it is a fact issue for other purposes, including Rule 56 purposes injurycases.C.
Materiality


For purposes of Rule 56 an issue is material if its resolution will determine the outcome. A dispute over the existence or non-existence of a fact or an inference is material only if in the particular case it makes a difference in the final decision. Materiality is relative; whether an issue is material is a function of the law and the facts of the particular case.

Numerous fact issues may be, or may potentially be in dispute, but that does not necessarily preclude summary judgment. On motion for summary judgment, the court must decide whether the resolution of any disputed fact issue is necessary to the outcome.72To put it differently, the court must decide whether any of the disputed fact issues are logically interdependent with the issue raised on motion. If the motion can be decided without regard to the fact issues, the latter are not material. For example, where plaintiff claimed an air crash was caused by metal fatigue, the existence of a factual dispute over that issue was immaterial once defendant established that the crash would have occurred in any event due to natural causes.73

Materiality for purposes of Rule 56, therefore, has a meaning different from that in other contexts such as under the securities laws. An issue is not material simply because itmayaffect the outcome. It is material only if it must inevitably be decided.74

Only after the court has an understanding of the issues in the case and their relationship to each other can it decide whether summary judgment is precluded by the existence of disputed questions of material fact. At times courts, when passing on motions for summary judgment, appear not to identify the material issues and place them in logical order.75Unless they do so, materiality cannot be properly determined and summary judgment is likely to be denied simply on the strength of the presence of some factual dispute, without regard to whether its resolution is necessary to the decision.

The process of identification and ordering of issues is an integral part of effective case management, regardless of whether a motion has been filed.76Judges engaged in that process may have the opportunity of identifying issues susceptible to disposition by summary judgment beforeWest Page 481a motion has been filed. Summary judgment can, in this respect, be an effective case management device.
III.
WHAT IS A "GENUINE" ISSUE
In the preceding part, I have considered what is and is not an issue of material fact. Rule 56 requires the court to ask the further question whether the issue, if it is a fact issue, is "genuine." An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.77Summary judgment is the means for disposing of such meretricious disputes.

The inquiry thus moves from what is the issue to what are the parties able to prove. In the usual case where that question arises, it is whether the proponent of an inference comes forward with sufficient evidence to sustain a judgment in his favor. The test of sufficiency is whether, on the evidence, a jury verdict would be sustained. If the evidence would compel a directed verdict or judgment n.o.v. against the opponent of the motion, there is no genuine issue and the motion must be granted.78

Whether a genuine issue is presented must be decided on the basis of all of the pleadings submitted, including both the motion and the response. Thus the court must first consider the procedure under Rule 56 for framing the issues on the motion. Next the court must assess the sufficiency of the parties' showing.A.
The Procedural Framework for Decision


The framework for decision of the motion is found in subdivisions (c) and (e) of Rule 56. They require that a motion (1) be supported by admissible evidence, i.e. affidavits made by competent witnesses on personal knowledge or containing other admissible evidence, and (2) demonstrate that the moving party is entitled to judgment as a matter of law. To oppose a motion so supported, a party must come forward with specific facts demonstrating a genuine issue for trial. In the absence of such anWest Page 482opposition, judgment is to be granted for the moving party if appropriate.79

Each party's showing should be independently examined to determine if it meets the requirements of the rule. Subdivision (e) provides that even where the opposition is inadequate, the motion is to be granted only "if appropriate." The court should therefore first determine whether the movant's showing, standing alone, would entitle him to judgment before assessing the opposition. This procedure will help prevent abuse of the summary judgment procedure and protect the opponent against unwarranted cost and delay; where harassment is a risk, the court can defer a response by the opponent until it has determined that the motion passes muster.80Once the court finds the moving papers to be sufficient, it must decide whether the opposing party has met its burden.

That burden is to come forward with facts to support the inferences urged by the opponent. Since the 1963 amendment, it is no longer sufficient to rest on the allegations or denials of the pleadings;81the opposition must now "set forth specific facts showing that there is a genuine issue for trial."82

In effect the opposing party must rebut the moving party's showing with evidence which would preclude a directed verdict or judgment n.o.v. for the moving party.83The opposing party may choose not to dispute the moving party's factual showing and to argue only its legal sufficiency, i.e. to treat the issue on the motion as a pure issue of law. But to create a genuine fact dispute, the opposing party cannot rest on the pleadings.

The requirement that the opponent come forward with facts furthers the policy of the Federal Rules of Civil Procedure favoring full pretrial disclosure of evidence and penalizing its withholding. It dovetails with the objective of the discovery and pretrial provisions of the Federal Rules to eliminate trial by ambush. But early and full disclosure of the parties' cases has in the past not always been favored by the bar or encouraged byWest Page 483the courts. The summary judgment procedure should be administered to promote such disclosure.

Subdivision (f) discovery is the necessary corollary to the requirement of subdivision (e) that the opposition set forth specific facts. It permits the judge to continue the motion pending discovery, as well as to deny it where critical evidence remains inaccessible. A court must take care that the opponent has been provided an adequate opportunity to conduct discovery but also that the discovery is limited to what is relevant to the issue raised by the motion.84Subdivision (f) enhances the utility of the summary judgment process by enabling the opponent to cross-examine the moving party's affiants and declarants. In passing on the sufficiency of the proponent's showing, particularly where the credibility of affiants is placed in issue, the court can consider whether the opponent took advantage of its opportunity to conduct discovery.85As pointed out in part II.B. above, it is not necessarily an objection to summary judgment that the witness cannot be cross-examined at trial; cross-examination is available through various discovery devices and it is only for the assessment of testimonial demeanor and weight that a trial is indispensable.86

But subdivision (f) should not be allowed to frustrate the summary judgment process. The court should examine critically any assertion of need for additional discovery in the light of the true issues presented by the motion, bearing in mind that an opponent's failure to come forward with a factual showing at this stage may presage a similar inability at trial.87In appraising proposed discovery, the court should also weigh the economic dimensions of the case, and aim for a balance between the value of the discovery and its cost. Conversely a court ought not to deny a motion on the strength of the opponent's assertion that obtaining opposing affidavits would be too costly if, as a result, the parties would be subjected to an even more costly trial.

Economic considerations, although not explicitly recognized in Rule 56, are inescapable in the summary judgment process. While the purpose of the rule is to avoid the cost of an unnecessary trial, summary judgment proceedings may themselves impose heavy costs on the parties. By careful and foresighted management, a court can often help the parties define the issues and control the evidence so as to limit the dimensions of the necessary showing for and against the motion.88Where a contemplated motion looks pointless, the court can discourage its filing in the first place to avoid unnecessary costs. After a motion is filed, the movingWest Page 484papers can be tested for sufficiency before a response is required. Finally, in weighing the proof submitted by the parties, the court might well test its adequacy by reference not only to abstract legal standards but also to the quality and quantity of proof that might reasonably be expected, given the financial stakes involved.89B.
Determining the Presence of a Genuine Issue
90

Rule 56 does not specify a standard for determining the presence of a genuine issue. The rule does not explain what a movant must show to establish the absence of a genuinely disputed issue of fact, nor what the opponent must show to establish that one is present. Courts have tended to assume that once a fact issue appears, a genuine dispute exists precluding summary judgment. This assumption is simplistic and it undermines the utility of the summary judgment procedure.

If, as I have sought to demonstrate, the test for a fact issue in jury cases is whether it must be decided by to the jury, then it should follow that the test of a genuine dispute is whether the proponent's evidence is sufficient to get to the jury.91Sufficiency may be tested in several different respects. If the movant's evidence itself reflects a dispute over a material historical fact a triable issue is presented. If on the other hand the motion is premised on resolution of all disputes over facts and inferences in favor of the opponent and argues the insufficiency of the opponent's case as a matter of law, there is no triable issue.92Finally ifWest Page 485the movant comes forward with a lawful explanation of its conduct and the opponent offers no opposing evidence, the motion must be granted if entry of judgment is otherwise appropriate.93

The adequacy of opposing evidence is governed by Subdivision (e) which requires that the evidence consist of "specific facts showing that there is a genuine issue for trial." Two types of situations have put that rule to the test. One is where the opposition is based on affidavits of experts. If such an affidavit puts forward facts or a reasonable basis for drawing adverse inferences from the movant's evidence, it may be sufficient.94If, on the other hand, the affidavit simply presents an expert's opinion supporting the claim made in the pleadings, it fails to comply with subdivision (e).95

The other situation is where the opponent offers no facts but attacks the credibility of the moving party's affiants. InSartorv. Arkansas Gas Corp.,96defendant moved for summary judgment on the issue of the level of the market price for natural gas. The opposing affidavit by plaintiff's attorney attacked the affidavits of the defendant's experts, based on the affiants' bias and interest and their former testimony in other cases, and asserted a different market price level. The majority opinion, in reversing summary judgment, found that there was "some, although far from conclusive, evidence of a market price" in plaintiff's counsel's affidavit but also emphasized that the weight and credibility of the opinions of defendant's witnesses was a triable issue. The dissent argued that plaintiff had offered no facts raising an issue and added that
it is unduly restrictive of the summary judgment procedure to say that respondent's motion for summary judgment must be denied because it is supportedin partby affidavits of interested expert witnesses who are not subject to cross-examination by plaintiff.97
Sartorwas decided prior to the 1963 amendment. At the time, there was disagreement among courts whether an opposition raising merely a credibility issue was sufficient to preclude summary judgment.98The present text of the rule, requiring the opponent to present specific facts and giving him the right to conduct discovery for that purpose, seems to settle that matter.99West Page 486

The common and most difficult problem arises when the opponent does come forward with facts raising a dispute, not over historical facts, but over ultimate facts of the kind for the jury to decide. The court must then decide whether the dispute is genuine. In doing so, the court must of course draw all reasonable inferences against the moving party. But it is not charged with drawing all inferences against that party, for to do so would virtually repeal Rule 56. A genuine issue of ultimate fact is presented only when, on the evidence offered, a reasonable jury would be permitted to draw an inference adverse to the moving party.100

The question when an adverse inference is permissible has been addressed by the Supreme Court in several cases. InPoller v.Columbia Broadcasting,101the Court reversed a summary judgment, holding that a jury could infer a conspiracy to drive plaintiff's television station out of the market from evidence that CBS terminated the station's affiliation and agreed to transfer that affiliation to another station to which plaintiff's station was ultimately sold at a distress price. InFirst Nat. Bank v. CitiesService,102on the other hand, summary judgment was affirmed; the Court held that a jury could not infer from Cities' refusal to purchase oil from plaintiff, who was selling oil from Iran's nationalized oil company, that Cities was a member of a conspiracy to boycott plaintiff where Cities itself was under pressure from its suppliers of foreign oil who were boycotting sellers of Iranian oil.103The Court foundPollerdistinguishable on the ground that the competitive relationship between plaintiff and defendant there made an adverse motive vis-a-vis plaintiff plausible; inCities Service, on the other hand, such a motive was precluded by the unrebutted evidence that Cities' interest as a purchaser of foreign oil was aligned with plaintiff's interest rather than with that of the boycotting oil companies who threatened to interfere with Cities' supply.

In a third case,Norfolk Monument v. Woodlawn104the Court held that a conspiracy between cemeteries and a grave marker manufacturer who competed with plaintiff could be inferred where the cemeteries, following suggestions in a pamphlet distributed by the manufacturer, adopted substantially identical practices which interfered with plaintiff's ability to sell grave markers.

Finally, inAdickes v. Kress,105a civil rights action, the question was whether Kress had conspired with city police officers to bring about theWest Page 487arrest of plaintiff who had sought to integrate Kress' lunch counter. Defendant's affidavits denied any communications between store employees and the police prior to the arrest. Plaintiff countered with an affidavit referring to evidence that the arresting policeman had been in the store before the critical events leading to the arrest, arguing that this was circumstantial evidence from which a jury could find a conspiracy. The Court held that defendant "did not carry its burden because of its failure to foreclose the possibility that there was a policeman in the Kress store while [plaintiff] was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served."106The Court noted that two other employees present in the store, one of whom was a waitress who might have communicated with the policeman, had not submitted affidavits. Moreover neither policeman had denied either having been in the store when service was refused or having encouraged the refusal.

These decisions illustrate what may or may not be genuine disputes over factual inferences but they do not necessarily provide a basis for deriving general principles. One reason is the uniqueness of the facts and policies of each case. Another is that the articulation of reasons in these and other cases is so diverse that to attempt to derive a general principle would be quixotic.

What is important about these cases is that they establish, contrary to the rhetoric often found in summary judgment decisions, that the mere existence of a dispute over ultimate facts to be inferred does not preclude summary judgment. In that situation, the court, instead of automatically denying the motion, must decide the legal question whether the dispute is genuine, i.e. whether an inference adverse to the moving party is sufficiently plausible that it could reasonably be drawn by a jury.107

That decision will turn principally on the facts. Two considerations must be taken into account in assessing the factual showing of the parties. The first concerns the relative accessibility of relevant proof to the parties. Where the moving party's affidavits offering a lawful explanation for the conduct appear to exhaust the facts available to him and there are no obvious omissions which that party could be expected to supply, the case for permitting adverse inferences is much weaker than it might otherwise be.108Conversely, where, as inAdickes, the moving party has better access than the opponent to key witnesses and fails to negate critical facts, an adverse inference is more plausible.

A second consideration concerns the burden of proof on the issue raised by the motion. Rule 56(c) requires the moving party to show not only the absence of a disputed issue of fact but also that he is entitled to judgment as a matter of law. In assessing the sufficiency of evidence to sustain a particular inference, therefore, the court must also consider the burden of proof on the issue and where it will rest at trial. When the moving partyWest Page 488does not have the burden of proof on the issue, he need show only that the opponent cannot sustain his burden at trial. But where the moving party has the burden — the plaintiff on a claim for relief or the defendant on an affirmative defense — his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.109

In addition to these evidentiary considerations, there are two factors that may frequently be helpful in assessing the plausibility of asserted adverse inferences. The first is whether the conduct from which an adverse inference is sought to be drawn is likely to be pursued in the absence of a prohibited purpose or arrangement.110Thus, Cities' refusal to start dealing with a seller of Iranian oil, being wholly consistent with lawful self-interest, was not the sort of conduct it was likely to have engaged in only because of a conspiracy. In that sense, it differed from CBS' termination of an affiliate whose assets were then sold at a distress price to another CBS affiliate, and from the arrest of a white woman ejected by the store whose lunch counter she had sought to integrate by police officers previously in the store. It also differed from consciously parallel behavior of competitors either instigated by someone expecting to benefit from it or pursued by the competitors against their self-interest.111

A second factor is whether a presumption of legitimacy attaches to this conduct. Certain activities are considered an integral part of a smoothly functioning economy, such as a refusal to initiate a new, unwanted business relation or a manufacturer's unilateral substitution of one distributor for another — to be distinguished from a manufacturer's termination of a price-cutting distributor.112Some conduct is endowed with special societal values, such as the exercise of First Amendment rights.113Thus, in a case of alleged copyright infringement, mere access by the alleged infringer to the work is not sufficient to support an inference of unlawful copying.114West Page 489

Once the court recognizes that the task it faces on motion for summary judgment is qualitatively no different from that on motion for directed verdict or judgment n.o.v., the miasma that often envelopes the procedure should dissipate. By focussing on these considerations and factors the court will be in a position to make a fair and reasoned decision.115
IV.
SCOPE OF REVIEW ON APPEAL
The scope of review on appeal from a summary judgment is generally stated to be de novo.116The underlying assumption seems to be that only questions of law are properly decided on summary judgment. As the foregoing discussion has shown, however, that is not necessarily so.

On appeal from a summary judgment which does decide a pure issue of law or the insufficiency of proffered facts to raise a genuine issue of fact, the standard of review is de novo.117But when the appeal is from a judgment which decides an issue of ultimate fact, the standard of review may be clearly erroneous rather than de novo, depending on the nature of the issue and of the proceedings below.West Page 490

As this Article has sought to demonstrate, two kinds of ultimate fact issues are appropriate for summary judgment: (1) those which are predominantly legal and hence for the court rather than the jury,118and (2) those which are decided by the court on motion because there is no claim to a jury trial and witness credibility and demeanor are not implicated.119

It would be tempting to resolve the question of the proper scope of review of appeals from those kinds of ultimate fact decisions by assuming a complete congruence of Rules 52(a)120and 56. If that assumption were valid, an issue appropriate for decision under Rule 56 would necessarily be one of law excluded from Rule 52(a). Conversely, an issue entitled to deference on appeal under Rule 52(a) would necessarily be one of fact not susceptible to summary judgment. That such an analysis is overly simplistic is readily demonstrated.

The starting point is the Supreme Court's decision inPullman-Standard v. Swint,121in which it reviewed a court of appeals decision reversing the trial court's ruling that an employer's seniority system did not violate Title VII. The trial court had found that the differences in treatment of black employees under the system were not the result of intentional discrimination, considering factors such as the employees' freedom to transfer among seniority units, the rationality of the units' structure, the lack of discrimination in the origin of the seniority system, and the absence of a discriminatory purpose in the negotiation and maintenance of the system.122In reversing the court of appeals, the Court held that the finding that there had been no intention to discriminate, "whether an ultimate fact or not, * * * is a factual matter subject to the clearly erroneous standard of Rule 52(a)."123

It is true that the issue inPullman— whether there was an intent to discriminate — is the kind of factual issue not normally subject to summary judgment. The significance of the decision, however, is that the Court held the clearly erroneous standard of review to apply to a trial court decision which resolved no disputed historical facts, and, being based essentially on a documentary record, involved no assessment of witness demeanor or credibility.124Pullmanthus rejects implicitly the rationale underlying de novo review of summary judgment, i.e. that the court of appeals is equally well situated to decide the issue because it has before itWest Page 491the same record as the trial court125and no questions of witness credibility or demeanor are implicated.126

Not only doesPullmanthus open the door to the clearly erroneous standard for review of ultimate fact decisions based on documentary evidence and undisputed historical facts, but it specifically recognizes that there is substantial authority to that effect. In a note, the Court referred to mixed questions of law and fact which it described as those questions where "the historical facts are admitted or established, the rule is undisputed, and the issue is whether the facts satisfy the statutory standard * * *."127It is with the application of Rule 56 to those kinds of questions with which this Article is primarily concerned. As to them, the Court noted that there "is substantial authority in the Circuits on both sides of [the] * * * question [whether the clearly erroneous standard applies]."128

The Supreme Court itself inCommissioner v. Duberstein,129applied that standard to a tax court determination based on undisputed facts that a transfer was a gift for tax purposes.Dubersteinhas been widely followed. InLundgren v. Freeman,130involving a claim of reformation of a written instrument for mistake, the Ninth Circuit applied the clearly erroneous standard to review of a trial court decision based wholly on documentary evidence because it derived in part "from the trial judge's experience with human affairs."131InSheet Metal Workers v. LosAlamos Const. Co.,132the Tenth Circuit affirmed a summary judgment holding, on the basis of the purposes of the agreement between the parties and their conduct, that a labor dispute was subject to arbitration. The appellate court held that "when a trial court makes a choice between two permissible views of the evidence (even when based upon stipulation), such choice is not then `clearly erroneous.'"133InSchool Dist. No. 54 v. CelotexCorp.,134the Eighth Circuit applied the clearly erroneous standard to findings concerning the weight of evidence of an alleged defect in roofing materials, holding that that standard applied "to reasonable inferences to be drawn from stipulated or undisputed facts. * * *"135And inC K Coal Co. v. United MineWorkers of America,136the Third Circuit held that, on undisputed facts, the existence of an agency relationshipWest Page 492between labor organizations was a question of ultimate fact subject to clearly erroneous review.137

I do not argue that these decisions compel adoption of the clearly erroneous standard on review of summary judgment on ultimate fact issues. What they do support is a reexamination of the assumption that the de novo standard of review is universally applicable to appeals from summary judgments.138The rationale underlying that assumption, that such appeals always present purely legal questions, is not valid.139Pullmanand the other cases cited, although for the most part not summary judgment cases, show that a trial court's choice among conflicting ultimate facts on undisputed evidence should in some cases be given deference on appeal.

The question remains when such deference would be appropriate.140In cases where the trial court decides ultimate facts which would go to the jury if trial were to the jury, and does so on motion because witness credibility and demeanor are not implicated, a strong case for deference exists. There the court can be found to have assessed the record in the light of its experience with human affairs and made a factual determination within the meaning ofPullman.

Where the decision is of ultimate facts of the kind appropriate for decision by a court as questions of law, the case for deference is weaker. Nevertheless, the appellate court may take into account the trial judge's long exposure, careful study and greater familiarity with what may be a lengthy and complex documentary record.141

Regardless of the scope of review, a summary judgment should be affirmed if it is supportable on any ground, even if the ground stated below is erroneous, so long as the appellant has had adequate notice.142Conversely, a judgment should ordinarily not be reversed on a ground not raised below where that might have affected the parties' factual showing.143West Page 493In particular, for an appellate court to permit appellant to assert on appeal a fact issue not raised in the trial court is destructive of orderly procedure and undermines the utility of Rule 56.144Only in unusual circumstances where, for example, the proper resolution is beyond doubt or where injustice might otherwise result may the appellate court invoke its discretion to follow such a procedure.145In the ordinary case the party who has obtained a summary judgment should be given the opportunity to counter the assertion of a fact issue in the trial court where it can be properly opposed.
V.
CONCLUSION
The objective of the principled analytical approach I have urged here is not to make it easier to obtain summary judgments. The approach might result in some motions being granted which might otherwise be denied but it also might result in additional denials. The objective rather is to raise the thinking about Rule 56 to a more informed, sophisticated and productive level. The result should be to dispel some of the confusion, hostility and fear that has surrounded Rule 56, increasing consistency and predictability in its application; and enhancing its capacity to promote the just, speedy and inexpensive determination of actions in the federal courts.
APPENDIX I

Rule 56. Summary Judgment

(a) For Claimant.A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.West Page 494(b) For Defendant Party.A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.(c) Motion and Proceedings Thereon.The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.(d) Case Not Fully Adjudicated on Motion.If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.(e) Form of Affidavits; Further Testimony; Defense Required.Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.(f) When Affidavits are Unavailable.Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.(g) Affidavits Made in Bad Faith.Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.
  1. United States District Judge for the Northern District of California. I am greatly indebted to Jeffery Ubersax, Michael Burns and Glenn MacGilvra for their help in preparing this article. ↩
  2. The full text of Rule56of the Federal Rules of Civil Procedure appears in Appendix I. In substance the rule permits a party to a civil action to move for summary judgment on all or any part of any claim, counterclaim or cross claim. The motion may be made by the proponent or the opponent of the claim. The court shall enter judgment if the record before it shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ↩
  3. Advisory Committee Notes to Rule 56,See also Engl v. AetnaLife Ins. Co.,139 F.2d 469,472-73(2d Cir. 1943) (Clark, J.). ↩
  4. Seenote 2,supra. ↩
  5. See Whitaker v. Coleman,115 F.2d 305,307(5th Cir. 1940). ↩
  6. 391 U.S. 253,88 S.Ct. 1575,20 L.Ed.2d 569(1968). ↩
  7. 391 U.S. at 259,88 S.Ct. at 1577. ↩
  8. See e.g. Twentieth Century Fox Film Corp. v. M.C.A. Inc.,696 F.2d 689(9th Cir. 1983) (Republished at715 F.2d 1327[9th Cir. 1983]). ↩
  9. See e.g. Poller v. Columbia Broadcasting,368 U.S. 464,473,82 S.Ct. 486,491,7 L.Ed.2d 458(1962);Brunswick Corp. v.Vineberg,370 F.2d 605,612(5th Cir. 1967) ("Summary judgment is a lethal weapon, and courts must * * * beware of overkill in its use.");Bruce v. Travelers Insurance Co.,266 F.2d 781,786(5th Cir. 1959). ↩
  10. SeeC.A. Wright, Rule 56(e): A Case Study on the Need for Amending the Federal Rules, 69 Harv. L.Rev. 839, 849-850 (1956). Statistical data furnished to me by the clerk of the Ninth Circuit Court of Appeals bears out that proposition. Out of a total of 1265 appeals from summary judgments decided by the Ninth Circuit between January 1979 and June 1983, 804 (63%) were affirmed. Of the remaining 461, 54 (4%) were dismissed for lack of jurisdiction or by stipulation, 61 (5%) were reversed, 46 (4%) were remanded, 190 (15%) were reversed and remanded, and 110 (9%) were in part reversed and remanded. The rate of affirmance differed substantially between published opinions and unpublished memoranda. Out of a total of 583 unpublished dispositions, 78% were affirmed; out of a total of 515 published dispositions, only 52% were affirmed.

    By way of comparison, the overall rate of affirmance by the Ninth Circuit of civil cases generally was as follows:
    1979 — 69%
    1980 — 71%
    1981 — 70%
    1982 — 71%
    SeeAnnual Reports of the Director of the Administrative Office of the United States Courts, Table B-1. ↩
  11. See Harlow v. Fitzgerald,457 U.S. 800,815-19,102 S.Ct. 2727,2737-2739,73 L.Ed.2d 396(1982);Klamath-Lake Pharm. v.Klamath Med. Serv. Bureau,701 F.2d 1276,1282(9th Cir. 1983) (Sneed J.);Weit v. Continental Ill. Nat. Bank,641 F.2d 457,464-65(7th Cir. 1981). ↩
  12. See Fidelity Deposit Co. v. United States,187 U.S. 315,23 S.Ct. 120,47 L.Ed. 194(1902). ↩
  13. See First Nat. Bank v. Cities Service,391 U.S. 253,303-4,88 S.Ct. 1575,1599-1600,20 L.Ed.2d 569(1968) (Brennan, J., dissenting);Hycon Manufacturing Co. v. H. Koch Sons,219 F.2d 353,355(9th Cir.),cert. denied,349 U.S. 953,75 S.Ct. 881,99 L.Ed. 1278(1955). ↩
  14. SeeFarley, Instructions to Juries — Their Role in the Judicial Process, 42 Yale L.J. 194, 198-99 (1932).Seethe discussion at notes 121-137,infra. ↩
  15. 456 U.S. 273,102 S.Ct. 1781,72 L.Ed.2d 66(1981). ↩
  16. 456 U.S. at 288,102 S.Ct. at 1789. ↩
  17. See United States v. J.B. Williams Company, Inc.,498 F.2d 414,430-31(2d Cir. 1974);Nunez v. Superior Oil Co.,572 F.2d 1119,1126(5th Cir. 1978). ↩
  18. SeeWebster's Third International Dictionary; Black's Law Dictionary. ↩
  19. The definition of fact includes "an occurrence, quality, or relation the reality of which is manifest in experience or may be inferred with certainty." Webster's Third International Dictionary (1971) 813. ↩
  20. See Baumgartner v. United States,322 U.S. 665,671,64 S.Ct. 1240,1243,88 L.Ed. 1525(1944);Cities Service, supra,391 U.S. at 289,88 S.Ct. at 1592;Helvering v. Tex-Penn Oil Co.,300 U.S. 481,491,57 S.Ct. 569,574,81 L.Ed. 755(1937). ↩
  21. Where the legal issue is separable from other issues in the case and its decision may be dispositive, a bifurcated trial of that issue under Rule 42, rather than a summary judgment motion, may be appropriate. ↩
  22. See Artvale, Inc. v. Rugby Fabrics Co.,363 F.2d 1002,1005(2d Cir. 1966);United States v. J.B. Williams Company, Inc.,supra; Nunez v. Superior Oil Co., supra; 5A Moore's Federal Practice § 42.05[1]. ↩
  23. This is probably the principal source of difficulty and confusion in summary judgment decisions. The same state of the record — undisputed historical facts from which a particular ultimate fact is derived — will lead one court to find a triable issue and the next to treat it unquestioningly as an issue of law.Compare Rosenthal v. Rizzo,555 F.2d 390(3rd Cir. 1977);Inre Mexico City Aircrash,708 F.2d 400(9th Cir. 1983);Estate ofWenzel v. Seaward Marine Services, Inc.709 F.2d 1326(9th Cir. 1983),with Todd v. Benal Concrete Const. Co.,710 F.2d 581(9th Cir. 1983). ↩
  24. See Zweig v. Hearst Corp.,521 F.2d 1129,1134(9th Cir. 1975). ↩
  25. Seenote 16,supra, andLoper v. Morrison,23 Cal.2d 600,611-12,145 P.2d 1(1944) (J. Traynor dissenting); Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal. L.Rev. 1867 (1966). ↩
  26. See Nunez v. Superior Oil Co., supra,572 F.2d at 1123, Weiner,supra, 54 Cal. L.Rev. at 1876. ↩
  27. Railroad Company v. Stout, 84 U.S. (Wall. 17) 657, 664,21 L.Ed. 745(1873). ↩
  28. Seediscussion at note 78,infra. ↩
  29. Dutrisac v. Caterpillar Tractor Co.(9th Cir. 1983). ↩
  30. Zweig v. Hearst Corp., supra; Securities Exch. Com. v.Murphy,626 F.2d 633(9th Cir. 1980);Chapman v. Rudd PaintVarnish Co.,409 F.2d 635(9th Cir. 1969). ↩
  31. Continental TV v. GTE Sylvania, Inc.,694 F.2d 1132,1135(9th Cir. 1982); see P. Areeda D. Turner, Antitrust Law (1978) ¶ 315. ↩
  32. Major's Furniture Mart v. Castle Credit Corp.,602 F.2d 538,539(3d Cir. 1979). ↩
  33. Emery v. Merrimack Valley Wood Products, Inc.,701 F.2d 985,989(1st Cir. 1983). ↩
  34. Spark v. Catholic University of America,510 F.2d 1277,1281(D.C. Cir. 1975). ↩
  35. Wolston v. Readers Digest Assn. Inc.,578 F.2d 427,429(D.C. Cir. 1978). ↩
  36. Rinsley v. Brandt,700 F.2d 1304,1309(10th Cir. 1983);Lewisv. Time Inc.,710 F.2d 549(9th Cir. 1983). ↩
  37. A.A. Hoehling v. Universal Studios Inc.,618 F.2d 972(2d Cir. 1980). ↩
  38. Cody v. Aktiebolaget Flymo,452 F.2d 1274(D.C. Cir. 1971),cert. denied,405 U.S. 990,92 S.Ct. 1254,31 L.Ed.2d 456(1972). ↩
  39. Aho v. Erie Mining Co.,466 F.2d 539(8th Cir. 1972). ↩
  40. But seeRosenthal v. Rizzo, supra. Estate of Wenzel v. SeawardMarine Services, Inc., supra. ↩
  41. Fox v. Johnson Wimsatt, Inc.,127 F.2d 729,736-37(D.C. Cir. 1942). ↩
  42. See Poller v. Columbia Broadcasting, supra, andNorfolkMonument v. Woodlawn,394 U.S. 700,89 S.Ct. 1391,22 L.Ed.2d 658(1969). ↩
  43. See United States v. Container Corp.,393 U.S. 333,89 S.Ct. 510,21 L.Ed.2d 526(1969). ↩
  44. See United States v. Gypsum,340 U.S. 76,71 S.Ct. 160,95 L.Ed. 89(1950). ↩
  45. See Continental TV Inc., supra, andChicago Board of Trade v.United States,246 U.S. 231,38 S.Ct. 242,62 L.Ed. 683(1918). ↩
  46. See Klamath-Lake Pharm. v. Klamath Med. Serv., supra. ↩
  47. See General Business Systems v. North Am. Philips Corp.,699 F.2d 965(9th Cir. 1983). ↩
  48. See Norfolk Monument, supra. ↩
  49. Whether a document is susceptible to a particular interpretation, or to more than one interpretation, has been held to be a question of law,Sherman v. Mutual Benefit Life Ins. Co.,633 F.2d 782,784(9th Cir. 1980); which may be governed by state law.Brobeck, Phleger Harrison v. Telex Corp.,602 F.2d 866,871(9th Cir.),cert. denied,444 U.S. 981,100 S.Ct. 483,62 L.Ed.2d 407(1979). ↩
  50. Laborers Health Welf. Tr. Fund v. Kaufman Broad,707 F.2d 412(9th Cir. 1983);United States v. J.B. Williams Company,Inc., supra,498 F.2d at 431-32. Some opinions assert flatly that where extrinsic evidence must be considered, summary judgment is inappropriate.See United States v. National Bonding Acc. Ins.,711 F.2d 131(9th Cir. 1983). That statement seems too broad since it cannot be assumed that the mere presence of additional documentary or testimonial evidence will necessarily raise a dispute over a historical fact or inference requiring trial. ↩
  51. See discussion at notes 28-38,supra. ↩
  52. See International Salt Co. v. United States,332 U.S. 392,68 S.Ct. 12,92 L.Ed. 20(1947);United States v. Gypsum, supra. ↩
  53. See White Motor v. United States,372 U.S. 253,83 S.Ct. 696,9 L.Ed.2d 738(1963);Kennedy v. Silas Mason Co.,334 U.S. 249,68 S.Ct. 1031,92 L.Ed. 1347(1948);Sartor v. Arkansas GasCorp.,321 U.S. 620,64 S.Ct. 724,88 L.Ed. 967(1944);Elby v.Reb Realty Inc.,495 F.2d 646,648-49(9th Cir. 1974). ↩
  54. The complexities which sometimes confront a court considering a motion for summary judgment may be a temptation to decline to grant it even though it may be sufficient to entitle the movant to judgment. Subdivision (c) suggests that the court has no discretion to do so; it states that judgment "shall be rendered forthwith" if it appears from the record that there is no genuine issue and the movant is entitled to judgment as a matter of law. But subdivision (e) permits the court to deny a motion even when the opposition is insufficient if judgment would not be "appropriate." There may be an inadvertent inconsistency in these provisions. It is doubtful, however, that the rule is intended to make summary judgment mandatory under any circumstances. As the discussion in this Article shows, sound analysis of a motion for summary judgment may implicate the trial judge's discretion at various points. At any of these points, the court might well decide that rendering judgment on the record before it, though technically permissible, would not be wise.See American Mfrs.M.I. Co. v. American Broadcasting Co.,388 F.2d 272,280(2d Cir. 1967);Roberts v. Browning,610 F.2d 528,529,536(8th Cir. 1979). It is unlikely that the rule is meant to deprive the court of that discretion.SeeC.A. Wright, note 9,supra, 69 Harv. L.Rev. at 854. But such a decision based on the court's exercise of its discretion ought to be differentiated from a denial based on the presence of triable issues of fact. Because it is an exercise of discretion, it should be accompanied by a statement of reasons, not only to show that the court acted reasonably but also to protect the integrity and credibility of Rule 56 itself. ↩
  55. But see In re Mexico City Aircrashof October 31, 1979,supra. ↩
  56. See Lupia v. Stella D'Oro Biscuit Co., Inc.,586 F.2d 1163,1166-67(7th Cir. 1978);Zweig v. Hearst Corp., supra,521 F.2d at 1135-36; notes 76, 88,infra. ↩
  57. Since the motion for summary judgment may be filed before a demand for jury trial must be made under Rule 38(b), it cannot always be determined from the pleadings whether the parties have waived a jury. ↩
  58. That will be true in the federal courts where, in the absence of a reassignment, the case normally remains with the judge to whom it was assigned when filed. In any event, some judge will be the trier of fact. ↩
  59. Anthony v. Petroleum Helicopters, Inc.,693 F.2d 495,497(5th Cir. 1982);Beckham v. Safeco Ins. Co. of America,691 F.2d 898(9th Cir. 1982);Scharf v. United States,597 F.2d 1240,1243(9th Cir. 1979);National Aviation Underwriters v. Altus FlyingService, Inc.,555 F.2d 778,784(10th Cir. 1977). Wigmore explains the foundation of the confrontation rule to rest on two distinct notions: (1) to provide the opponent with the opportunity to cross-examine adverse witnesses, and (2) to enable the trier of fact to assess the testimony on the basis of the witness' demeanor. Wigmore, Evidence §1395.

    Note that §437cof the California Code of Civil Procedure provides that if a party is otherwise entitled to summary judgment, it shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits. ↩
  60. See Lundeen v. Cordner,354 F.2d 401,408(8th Cir. 1966); subseq. opinion356 F.2d 169,170(8th Cir. 1966). ↩
  61. See Angel v. Seattle First Nat. Bank, infra,653 F.2d 1293,1300(9th Cir. 1981). ↩
  62. See National Union Fire Ins. Co. v. Argonaut Ins. Co.,701 F.2d 95,97(9th Cir. 1983). ↩
  63. 340 U.S. 76,71 S.Ct. 160,95 L.Ed. 89(1950). ↩
  64. 412 U.S. 609,93 S.Ct. 2469,37 L.Ed.2d 207(1973). ↩
  65. 412 U.S. at 622,93 S.Ct. at 2479. ↩
  66. 369 U.S. 654,82 S.Ct. 993,8 L.Ed.2d 176(1962). ↩
  67. 369 U.S. at 654,82 S.Ct. at 994. ↩
  68. 369 U.S. at 655,82 S.Ct. at 994. ↩
  69. See Cities Service, supra, and the discussion at pp. 482-484,infra. ↩
  70. InDiebold, perhaps, a case could be made for requiring the failing company issue to be decided on the basis of live testimony because the moving party had the burden of proof on that issue at trial. Thus to be entitled to summary judgment, Diebold had to establish the defense by a preponderance of the evidence, a greater burden than had the motion been made by the party opposing the issue. If, instead, Diebold had moved on the issue of the acquisition's effect on commerce, on which the trial burden of proof was on the opposing party, Diebold would only have to show the government's inability to meet its burden and disposition on motion would have been appropriate. ↩
  71. Seenote 53,supra.I do not advocate that Rule 43(a), which prohibits trial by affidavit, should be disregarded. The premise of the argument is that in a bench trial, in the absence of a dispute over testimonial demeanor or credibility, there may be no triable issue of fact. ↩
  72. Courts of appeals for the most part have not addressed the jury/nonjury distinction I have urged here. Only the Second Circuit has rejected it, but without apparent consideration of the reasons for making a distinction.United States v. J.B.Williams Company, Inc., supra,498 F.2d at 430, n. 19;AmericanMfrs. M.I. Co. v. American Broadcasting,388 F.2d 272,279(2d Cir. 1967). The Fifth Circuit, on the other hand, has in a series of decisions firmly embraced it.Nunez v. Superior Oil Co.,supra; Houston North Hosp. Proj. v. Telco Leasing, Inc.,680 F.2d 19,22(5th Cir. 1982);Ala. Farm. Bur. Mut. Cas. v. Am. Fid.Life Ins. Co.,606 F.2d 602,609-10(5th Cir. 1979). Decisions in other circuits may be read as supporting this approach implicitly.See Tripp v. May,189 F.2d 198,200(7th Cir. 1951);Fox v. Johnson Wimsatt,127 F.2d 729(D.C. Cir. 1942);Starskyv. Williams,512 F.2d 109,111(9th Cir. 1975);Hass ex rel.United States v. United States,518 F.2d 1138(4th Cir. 1975). ↩
  73. See Angel v. Seattle First Nat. Bank,653 F.2d 1293(9th Cir. 1981);Barker v. Norman,651 F.2d 1107,1133(5th Cir. 1981);Standard Oil Co. v. Dept. of Energy, 596 F.2d 1029, 1065 (Em.App. 1978). ↩
  74. See British Airways v. Boeing Co.,585 F.2d 946(9th Cir. 1978).See also Compass Ins. Co. v. Vanguard Ins. Co.,649 F.2d 331,332-33(5th Cir. 1981). ↩
  75. See Angel v. Seattle First Nat. Bank, supra,653 F.2d at 1299-1300,Standard Oil Co. v. Dept. of Energy, supra, 596 F.2d at 1065;Securities Exchange Com. v. Geyser Minerals Corp.,452 F.2d 876,880(10th Cir. 1971). ↩
  76. See Estate of Wenzel v. Seaward Marine Services Inc.,709 F.2d 1326(9th Cir. 1983). ↩
  77. SeeSchwarzer, Managing Antitrust and Other Complex Litigation (Michie 1982) ch. 2. ↩
  78. See Aydin Corp. v. Loral Corp.,718 F.2d 897(9th Cir. 1983);Flying Diamond Corp. v. Pennaluna,586 F.2d 707(9th Cir. 1978). ↩
  79. See v. Durang,711 F.2d 141(9th Cir. 1983);Southard v.Forbes,588 F.2d 140,145(5th Cir. 1979);Flying Diamond Corp.v. Pennaluna Co., Inc.,586 F.2d 707,713(9th Cir. 1978);Jasonv. Fonda,698 F.2d 966(9th Cir. 1982);Ambook Enterprises v.Time Inc.,612 F.2d 604,613(2d Cir. 1979);THI-Hawaii v. FirstCommerce,627 F.2d 991(9th Cir. 1980);Dyer v. MacDougall,201 F.2d 265,268(2d Cir. 1952) (L. Hand).Contra, Pierce v. FordMotor Co.,190 F.2d 910,915(4th Cir. 1951). The directed verdict/judgment n.o.v. analysis necessarily takes into account the effect of the trial burden of proof on the issue. See M.B. Louis, Federal Summary Judgment Doctrine, A Critical Analysis, 83 Yale L.J. 745 (1974);see also Dyer v. MacDougall, supra,201 F.2d at 268, p. 487,infra.

    InLee v. Flintkote,593 F.2d 1275,1282n. 37 (D.C. Cir. 1979), the court suggested that the Supreme Court, inAdickes v. Kress,398 U.S. 144,90 S.Ct. 1598,26 L.Ed.2d 142(1970), rejected the directed verdict/judgment n.o.v. standard. It is doubtful, however, that the Court, when it referred to the need of the moving party to "foreclose the possibility" of an adverse inference, intended to go beyond that standard, for to do so would in effect preclude summary judgment on all but pure issues of law. ↩
  80. SeeAppendix 1. Summary judgment may be grantedagainstthe moving party by treating the opposition as a cross-motion. But this may be done only if the moving party receives sufficient notice of the court's intention to have an adequate opportunity to respond.See Portland Retail Druggists Assn. v. KaiserFoundation Health Plan,662 F.2d 641,645(9th Cir. 1981). The court may also grant summary judgment against a party "sua sponte" provided notice and an opportunity to oppose is given.Harrington v. Vandalia-Butler Board of Education,649 F.2d 434,436(6th Cir. 1981);Kistner v. Califano,579 F.2d 1004,1006(6th Cir. 1978).Flli Moretti Cereali S.P.A. v. Continental GrainCompany,563 F.2d 563,565(2d Cir. 1977);See also In reSouthland Supply, Inc.,657 F.2d 1076,1079(9th Cir. 1981).Butsee Choudhry v. Jenkins,559 F.2d 1085,1088-89(7th Cir. 1977);Matter of Hailey,621 F.2d 169,171(5th Cir. 1980). ↩
  81. See McDonnell v. Mich. Chapter No. 10,587 F.2d 7,9(6th Cir. 1978);Environmental Defense Fund v. Marsh,651 F.2d 983,991(5th Cir. 1981). ↩
  82. See Thornhill Pub. v. GTE,594 F.2d 730(9th Cir. 1979) (theory unsubstantiated by specific facts);Gossett v. Du-Ra-KelCorp.,569 F.2d 869(5th Cir. 1978) (factual generalizations unsupported by specific facts);Merit Motors, Inc. v. ChryslerCorp.,569 F.2d 666(D.C. Cir. 1977) (expert opinion unsupported by specific facts).But see Northrop Corp. v. McDonnell DouglasCorp.,705 F.2d 1030(9th Cir. 1983) ("Northrop's assertions in the pleadings of predatory conduct are also adequate to avoid summary judgment"). ↩
  83. SeeAppendix I. ↩
  84. Seenote 78,supra. ↩
  85. See Cities Service, supra,391 U.S. at 297-98,88 S.Ct. at 1596-97. ↩
  86. See Lundeen v. Cordner, supra,354 F.2d at 408;Gossett,supra; Guild Trust v. Union Pacific Land Resources Corp.,682 F.2d 208,210-11(10th Cir. 1982). ↩
  87. See Lundeen, supra. ↩
  88. See Cities Service, supra,391 U.S. at 294-98,88 S.Ct. at 1595-97;Willmar Poultry Co. v. Motron-Norwich Products, Inc.,520 F.2d 289,297(8th Cir. 1975);Klamath-Lake Pharm., supra,701 F.2d 1276;Kephart v. Institute of Gas Technology,630 F.2d 1217,1220(7th Cir. 1980). ↩
  89. If judgment is not rendered, the court may, pursuant to subdivision (d), specify those facts which are genuinely in dispute and make an order directing further proceedings. In this manner, even an unsuccessful motion may serve to narrow the issues and expedite trial. ↩
  90. See the recent amendment to Rule 26(b)(1) recognizing the relevance of the economic factor:

    The frequency or extent of use of the discovery methods set forth in subdivision (a) shall be limited by the court if it determines that * * *

    (iii) the discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties' resources, and the importance of the issues at stake in the litigation. ↩
  91. In non-jury cases, under the analysis of part II.B., there will normally be no need to determine the genuineness of a dispute. If the trial court decides that a material issue may turn on testimonial demeanor or credibility, it has implicitly decided the presence of a genuine dispute. If it decides otherwise, the case is ready for summary disposition. ↩
  92. Seenote 78,supra. ↩
  93. This is the context in which cross-motions for summary judgment may be made. The making of a cross-motion does not necessarily amount to a waiver of triable fact issues since a party may move on an issue while reserving its position on other issues.Vetter v. Frosch,599 F.2d 630,632(5th Cir. 1979);Matter of Citizens Loan Sav., supra,621 F.2d at 913.But seeFox v. Johnson Wimsatt, supra,127 F.2d at 736. But where both parties move for summary judgment on the merits, and neither expressly reserves material fact issues for trial in the event of an adverse ruling, the better view would be to hold any fact disputes to have been waived. Two considerations support this view: first, that the parties' unqualified submission of the case for decision on the merits is equivalent to a stipulated trial on an agreed statement, a recognized procedure;Vetter, supra;Starsky v. Williams,512 F.2d 109,111(9th Cir. 1975);SouthwestForest Industries, Inc. v. Westinghouse Elec. Corp.,422 F.2d 1013,1018(9th Cir. 1970); second, that in the interest of orderly procedure, parties should not be permitted to raise, for the first time on appeal, issues not raised in the trial court. See pp. 492, 493,infra, andVetter, supra; Singleton v. Wulff,428 U.S. 106,120,96 S.Ct. 2868,2877,49 L.Ed.2d 826(1976);Bernard v. City of Palo Alto,699 F.2d 1023,1026(9th Cir. 1983);Cities Service, supra,391 U.S. at 280n. 16,88 S.Ct. at 1588n. 16.But see Hycon Manufacturing Co. v. H. Koch Sons,219 F.2d 353,355(9th Cir.),cert. denied,349 U.S. 953,75 S.Ct. 881,99 LEd. 1278(1955);Lac Courte Oreilles Band v.Voigt,700 F.2d 341,349(7th Cir. 1983). ↩
  94. See ALW Inc. v. United Air Lines, Inc.,510 F.2d 52,55(9th Cir. 1975);Mutual Fund Investors v. Putman Management Co.,553 F.2d 620(9th Cir. 1977);Blair Foods Inc. v. Ranchers CottonOil,610 F.2d 665(9th Cir. 1980). ↩
  95. See National Union Fire Ins. Co. v. Argonaut Ins. Co.,701 F.2d 95,97(9th Cir. 1983);Scharf v. United States Atty. Gen.,597 F.2d 1240,1243(9th Cir. 1979);Bieghler v. Kleppe,633 F.2d 531(9th Cir. 1980). ↩
  96. See United States v. Various Slot Machines on Guam,658 F.2d 697,700(9th Cir. 1981);Merit Motors, Inc. v. Chrysler Corp.,569 F.2d 666,672-73(D.C. Cir. 1977);Thornhill Pub. v. GTE,594 F.2d 730,738(9th Cir. 1979). The cases indicate that a failure to attack the affidavit by motion to strike may be taken as a waiver of its insufficiency.See Scharf, supra,597 F.2d at 1243. ↩
  97. 321 U.S. 620,64 S.Ct. 724,88 L.Ed. 967(1944). ↩
  98. 321 U.S. at 631,64 S.Ct. at 730. ↩
  99. See e.g.Moore's Fed. Practice, para. 56.15. ↩
  100. See Matter of Citizens Loan Sav. Co.,621 F.2d 911,913(8th Cir. 1980);Nat. Union Fire Ins. Co. v. Argonaut Ins. Co.,701 F.2d 95(9th Cir. 1983),Lundeen, supra,356 F.2d at 170. ↩
  101. See National Industries v. Republic Nat. Life Ins. Co.,677 F.2d 1258,1265(9th Cir. 1982);Mutual Fund Investors v. PutnamManagement Co.,553 F.2d 620,624(9th Cir. 1977). ↩
  102. 368 U.S. 464,82 S.Ct. 486,7 L.Ed.2d 458. ↩
  103. 391 U.S. 253,88 S.Ct. 1575,20 L.Ed.2d 569(1968). ↩
  104. The Court ruled in passing that plaintiff was barred from arguing that Cities may have been coerced into joining the conspiracy, not having raised the point below. See the discussion at pp. 492, 493,infra. ↩
  105. 394 U.S. 700,89 S.Ct. 1391,22 L.Ed.2d 658. ↩
  106. 398 U.S. 144,90 S.Ct. 1598,26 L.Ed.2d 142(1970). ↩
  107. 398 U.S. at 157,90 S.Ct. at 1608. ↩
  108. See Weit v. Continental Ill. Nat. Bank Trust Co.,641 F.2d 457(7th Cir. 1981). ↩
  109. See ALW, Inc., supra. ↩
  110. See generallyM.B. Louis, Federal Summary Judgment Doctrine, 83 Yale L.J. 745, 751-53 (1974), andWalker v. American MotoristsInsurance Co.,529 F.2d 1163(5th Cir. 1976). ↩
  111. See Steckl v. Motorola Inc.,703 F.2d 392(9th Cir. 1983) (age discrimination);Klamath-Lake Pharm., supra, 1290-91 (health insurance antitrust case);Ambook Enterprises v. Time Inc.,612 F.2d 604,613(2d Cir. 1979). ↩
  112. See Weit, supra, Modern Home Institute Inc. v. HartfordAccident Indem. Co.,513 F.2d 102,108-14(2d Cir. 1975);Proctor v. State Farm Mut. Auto Ins. Co.,675 F.2d 308(D.C. Cir. 1982). ↩
  113. See JBL Enterprises, Inc. v. Jhirmack Enterprises, Inc.,698 F.2d 1011(9th Cir. 1983);Bushie v. Stenocord Corp.,460 F.2d 116,119(9th Cir. 1972);General Business Systems v. North Am.Philips Co.,699 F.2d 965(9th Cir. 1983). ↩
  114. See Washington Post Co. v. Keogh,365 F.2d 965,968(D.C. Cir. 1966),cert. denied,385 U.S. 1011,87 S.Ct. 708,17 L.Ed.2d 548(1967) ("In the First Amendment area, summary procedures are even more essential * * *. Unless persons, including newspapers, desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors." Whether this approach survives after,Hutchinsonv. Proxmire,443 U.S. 111,120n. 9,99 S.Ct. 2675,2680n. 9,61 L.Ed.2d 411(1979), is open to question. ↩
  115. See Ferguson v. National Broadcasting Co.,584 F.2d 111,113(5th Cir. 1978). ↩
  116. The felt need for a demonstration that the trial court's decision was reasoned has led some appellate courts, reviewing summary judgments below, to be critical of and even reverse or remand for lack of findings or stated reasons.Van Bourg, Allen,Weinberg Roger v. NLRB,656 F.2d 1356(9th Cir. 1981);WinterPark Tel. Co. v. Southern Bell Tel Tel Co.,181 F.2d 341(5th Cir. 1950);Heath v. Cleary,642 F.2d 455(9th Cir. 1981). These courts have generally justified their rulings by pointing to a need for clarification of the record below. Those decisions may be inconsistent with Rule 52(a) which specifically states that "findings of fact and conclusions of law are unnecessary on decision of motions under Rules 12 or 56." Only where the court acts under subdivision (d) and, instead of granting judgment, issues an order specifying the undisputed facts are findings called for. Nevertheless a good case can be made for findings where the record is sizeable and the issue decided is a mixed question of law and fact. And where the trial court has engaged in an analysis such as this Article urges, the reviewing court's ability to track the trial court's reasoning and appreciate its conclusions will be enhanced by a statement of reasons. Although such a statement might itself contribute to a reversal if the appellate court disagrees with the trial court's reasoning, on balance a summary judgment will be more hospitably received if supported by a statement reflecting a reasoned disposition by the lower court.See Carter v. Stanton,405 U.S. 669,671,92 S.Ct. 1232,1234,31 L.Ed.2d 569(1971);United States v. ContinentalOil Co.,377 U.S. 161,84 S.Ct. 1155,12 L.Ed.2d 213(1964) (Harlan, J. concurring);Heller v. Namer,666 F.2d 905,911(5th Cir. 1982);Boazman v. Economics Laboratory Inc.,537 F.2d 210,213n. 5 (5th Cir. 1976);Carpenter v. Harris, Upham Co.,594 F.2d 388,395(4th Cir. 1979);Benton-Volvo-Metairie Inc. v.Volvo Southwest, Inc.,479 F.2d 135(5th Cir. 1973). Such a statement is certainly called for where review is under the clearly erroneous standard. See pp. 490-492,infra. ↩
  117. See Heiniger v. City of Phoenix,625 F.2d 842,843-44(9th Cir. 1980);Twentieth Century-Fox Film Corp. v. MCA Inc.,696 F.2d 689,690(9th Cir. 1983) (Republished at715 F.2d 1327[9th Cir. 1983]). Illustrative of the confusion that often prevails isHass v. United States,518 F.2d 1138(4th Cir. 1975), where the court on appeal from a summary judgment held the pivotal issue (whether plaintiff was engaged in activity incidental to military service) to be "a fact question" and then proceeded to affirm the lower court's finding. ↩
  118. See9 Wright Miller, Federal Practice and Procedure, § 2536, and pp. 481-484,supra.Thus, the appellate court will view the facts and inferences in the light most favorable to the opponent of the motion.Kropp v. Ziebarth,601 F.2d 1348,1352(8th Cir. 1979). ↩
  119. Seepp. 472-475,supra. ↩
  120. Seepp. 477-479,supra. ↩
  121. Rule 52(a) provides in relevant part:

    Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.

    That Rule 56 by its terms does not require findings of fact cannot be taken to preclude application of Rule 52(a) to the review of appropriate summary judgment decisions. ↩
  122. 456 U.S. 273,102 S.Ct. 1781,72 L.Ed.2d 66(1982). ↩
  123. 456 U.S. at 279-83,102 S.Ct. at 1785-87. ↩
  124. 456 U.S. at 293,102 S.Ct. at 1792. ↩
  125. 456 U.S. at 301-2n. 6,102 S.Ct. at 1796-7n. 6 (dissenting opinion). ↩
  126. See Heiniger v. City of Phoenix, supra,625 F.2d at 843-44. ↩
  127. See Environmental Defense Fund v. Marsh, supra,651 F.2d at 991.But see Bittner v. Borne Chemical Co. Inc.,691 F.2d 134,138(3d Cir. 1982). ↩
  128. 456 U.S. at 289n. 19,102 S.Ct. at 1790n. 19. ↩
  129. Id. ↩
  130. 363 U.S. 278,80 S.Ct. 1190,4 L.Ed.2d 1218(1960). ↩
  131. 307 F.2d 104(9th Cir. 1962).See also Gay v. Waiters andDairy Lunchmen's Union,694 F.2d 531,545n. 13 (9th Cir. 1982);United States v. Chesher,678 F.2d 1353,1358n. 3 (9th Cir. 1982). ↩
  132. 307 F.2d at 115. ↩
  133. 550 F.2d 1258(10th Cir. 1977). ↩
  134. 550 F.2d at 1265. ↩
  135. 556 F.2d 883(8th Cir. 1977). ↩
  136. 556 F.2d at 885. ↩
  137. 704 F.2d 690(3rd Cir. 1983). ↩
  138. Contra Karavos Compania v. Atlantica Export Corp.,588 F.2d 1,7-9(2d Cir. 1978). ↩
  139. On occasion, appellate courts have avoided de novo review in favor of the clearly erroneous standard by interpreting the judgment below as having been rendered as if after trial on a stipulated record rather than on motion for summary judgment. SeeIntern. Ladies Garment Workers v. Sureck,681 F.2d 624,629(9th Cir. 1982). ↩
  140. Cf. Garter-Bare Co. v. Munsingwear, Inc.,650 F.2d 975,983(9th Cir. 1980) (concurring opinion). ↩
  141. Deference is clearly called for on review of procedural rulings preliminary to granting a motion for summary judgment, such as that the record was sufficiently developed,Guild Trustv. Union Pacific Land Resources Corp.,682 F.2d 208,210-11(10th Cir. 1982); or that discovery should be stayed,Church ofScientology v. Cazares,638 F.2d 1272,1289(5th Cir. 1981). Those rulings should of course be reviewed only for abuse of discretion. One ruling that may fall within this category is the determination, under part II.B.,supra, that an issue does not implicate witness credibility or demeanor. See pp. 479-480,supra. ↩
  142. Seegenerally J.F. Nangle, The Ever Widening Scope of Fact Review in Federal Appellate Court — Is the "Clearly Erroneous Rule" Being Avoided, 59 Washington University L.Q. 409 (1980). ↩
  143. See Bernard v. City of Palo Alto,699 F.2d 1023,1024, n. 1 (9th Cir. 1983);Proctor, supra,675 F.2d at 326;Church ofScientology, supra,638 F.2d at 1281. ↩
  144. See Adickes v. Kress Company, supra,398 U.S. at 157-58n. 16,90 S.Ct. at 1608n. 16;Compass Insurance Company v. VanguardInsurance Company,649 F.2d 331,333(5th Cir. 1981);FranzChemical Corporation v. Philadelphia Quartz Company,594 F.2d 146,150(5th Cir. 1979);Frank C. Bailey Enterprises, Inc. v.Cargill Inc.,582 F.2d 333,334(5th Cir. 1978);Drexel v. UnionPrescription Centers, Inc.,582 F.2d 781,784(3d Cir. 1978);Sound Ship Building Corporation v. Bethlehem Steel Company, Inc.,533 F.2d 96,101(3d Cir. 1976);Garcia v. American MarineCorporation,432 F.2d 6,8(5th Cir. 1970);Proctor v. State FarmMut. Auto Ins. Co., supra,675 F.2d 325-16;Standard Oil Co. v.Dept. of Energy, 596 F.2d 1029, 1068 (Em.App. 1978);Bernard v.City of Palo Alto, supra. ↩
  145. See Vetter v. Frosch, supra,599 F.2d at 633.Franz ChemicalCorp. v. Philadelphia Quartz Co.,594 F.2d 146,150(5th Cir. 1979);Frank C. Bailey Enterprises Inc. v. Cargill Incorporated,582 F.2d 333,334(5th Cir. 1978);Drexel v. Union PrescriptionCenters,582 F.2d 781,784n. 4 (3rd Cir. 1978);Sound Ship Bldg.Corp. v. Bethlehem Steel Co.,533 F.2d 96,101n. 3 (3rd Cir. 1976); note 82,supra. ↩
  146. See Singleton v. Wulff,428 U.S. 106,121,96 S.Ct. 2868,2877,49 L.Ed.2d 826(1976);Ahmed v. American Steamship MutualProtection Indemnity Association,640 F.2d 993,996(9th Cir. 1981);Krause v. Sacramento Inn,479 F.2d 988,989-90(9th Cir. 1973). ↩